What is preventive arrest?

Whether and in what

circumstances it is competent for a police officer to arrest
a person without warrant? Is it permissible to detain such
a person in police custody beyond 24 hours?
(BJS 2014)

Answer:

Section 151 of Code of Criminal Procedure gives power in

the hands of the police to arrest a person without a
warrant or an order from the Magistrate, in cases where
they have knowledge that such person is designing to
commit a cognizable offence and there is a sufficient
cause to believe that the commission of such offence
cannot be otherwise prevented. Thus, section 151 deals
with ‘Preventive Action of the police’ . It is clear that the
object of Section 151 is to avert the commission of an
undesirable offence.

Section 151 empowers the police to arrest a person,

without a warrant, whom they believe, may commit a
cognizable offence. The conditions laid down
under Section 151 with regard to the arrest are :

- the commission of an offence that is anticipated by

the police must be a cognizable one and

- It appears that the anticipated offence shall only be

prevented by arrest.

In case of Ahmed Noor Mohmed Bhatti vs State Of Gujarat

And Ors, 16 March, 2005, court held that:

“The provision (Section 151) by no stretch of imagination

can be said to be either arbitrary or unreasonable or
infringing upon the fundamental rights of a citizen under
Articles 21 and 22 of the Constitution of India.”

Coming to second part of question, there might be

circumstances where prompt and immediate arrest is
needed and there is no time to approach magistrate and
obtain a warrant though, as a general rule police officer
cannot arrest an accused without warrant. However,
there are certain exceptional circumstances enumerated
in crpc under which a Police can make an arrest without
warrant. Such cases are specified in schedule I of crpc.
Section 41 of Code of Criminal Procedure envisages the
circumstances under which an arrest can be made without
warrant:
1. When any person is suspected to be concerned in a
cognizable offence.
2. Any person, who in the presence of such an officer
has been accused of committing a non-cognizable
offence and refuses to give his true name or
residence.
3. Any person suspected to be concerned in any act
committed at a place outside India which if
committed in India would be punishable as an offence
for which he would be liable to be apprehended or
detained in custody in India.
4. Any person for whose arrest any requisition is
received from another police officer competent to
arrest that person without a warrant.
5. Any person reasonably suspected of being a deserter
from any of the Armed Forces of the Union.
6. Any person found in possession of any implement of
house-breaking without any lawful excuse.
7. Any person found in possession of property
reasonable suspected to be stolen and who may be
reasonably suspected of having committed an
offence with reference to such property.
8. Any person obstructing a Police officer in the
discharge of his duties.
9. Any person who has escaped from lawful custody.
10. Any released convict committing a breach of any
rule made under Section 356(5) of CrPC.
11. Any person designing to commit a cognizable
offence which cannot be prevented (except) by the
arrest of such a person.
12. A police officer incharge of a police station may
as a preventive measure arrest without warrant any
person belonging to one or more of the categories of
persons specified in Section 109 or Section 110 crpc
13. Also, section 151 of CrPC provides for statutory
provision empowering the police to arrest any
person, without orders from a Magistrate and
without warrant, “if it appears to such officer” that
such person is designing to commit a cognizable
 offence and that the commission of offence cannot be
prevented otherwise.

The third part of question is whether it is permissible to

detain arrested person in police custody beyond 24 hours.
In this regard is is stated that a police cannot keep any
accused in its custody for more than 24 hours. Section 57
of the Cr.P.C.1973 specifically prohibits a police officer
from detaining the arrested person for more than 24 hour
in police custody, exclusive of the time necessary for
journey from the place of arrest to the court of Magistrate
except under the special order Magistrate. This is also
guaranteed under A. 22(2) of Constitution of Indian.
In Arnesh Kumar v. State of Bihar, it was held that
procedure of section 57 Crpc must be strictly complied by
the police officer.

Procedure when investigation cannot be completed in

twenty-four hours:
Section 167 of crpc lays down the procedure to be
adopted when the investigation against accused person
cannot be completed within 24 hours of his arrest and
there are grounds for believing that the accusations
against him are well founded.
However, the provisions of Section 167 are not to be
invoked where the accusation or information is not well
founded, or where the investigation can be completed
within 24 hours.
The Judicial Magistrate to whom the accused person is so
forwarded, whether or not he has jurisdiction to try the
case, may authorize the detention of the accused in police
custody for a term not exceeding 15 days in the whole. He
may order the accused to be forwarded to a judicial
Magistrate having jurisdiction to try the case, if he
consider detention of the accused beyond 15 days
necessary for completion of investigation.
The nature of custody may be altered from police custody
to judicial custody and vice versa during the first 15 days
period (7 days in case of Executive Magistrate under
sub-section (2-A). But on expiry of 15 days period, the
accused can be ordered to be kept in judicial custody only
and not in the custody of the police.
The maximum period of remand in case of offences
punishable with death, imprisonment for life or
imprisonment for a term not less than ten years is 90 days
and for any other offence it is 60 days. If the investigation
is not completed within this period the accused person
has got to be released on default bail without any further
detention.

The Supreme Court in CBI Special Investigation Cell v.

Anupam Kulkarni, has reiterated that the custody after
the expiry of first 15 days can only be judicial custody for
the rest of the period of 90 days or 60 days as the case
may be.

Reasons to be recorded while dealing with remand cases:-

In Kultej Singh v. Circle Inspector , court held that as per
section 167 of the Code of Criminal procedure, 1973
magistrate should not only direct remand in case he is
satisfied but should also record his reason while
remanding the accused. The Magistrate is also bound to
record the reason in case he does not feel necessary to
order for the detention of the accused for the purpose of
investigation and in such a case he should release that
accused.